Allmen Industries Pty Ltd v Action Recovery Services Pty Ltd [2000] NSWCA 238

New South Wales Court of Appeal

CITATION : Allmen Industries Pty Ltd v Action Recovery Services Pty Ltd [2000] NSWCA 238 FILE NUMBER(S) : CA 40231/99 HEARING DATE(S) : 24/08/00 JUDGMENT DATE : 30 August 2000

PARTIES : Allmen Industries Pty Limited (Appellant) Action Recovery Services Pty Limited (Respondent) JUDGMENT OF : Fitzgerald JA at 1; Foster AJA at 32; Brownie AJA at 33

LOWER COURT JURISDICTION : District Court LOWER COURT 9694/97 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER :

COUNSEL : Mr J Hemmings (Appellant) Mr P Sternberg (Respondent) SOLICITORS : Coudert Brothers (Appellant) Elias Gates & Associates (Respondent) CATCHWORDS : Building sub-contract - subcontractor stopped work - dispute as to which party repudiated the contract - "of-the-cuff" reserved judgment - inadequate findings unrelated to the pleadings - conflict of evidence - new trial - ND DECISION : Appeal allowed with costs; Cross appeal dismissed with costs; Retrial ordered; Respondent granted a certificate under the Suitors Fund Act 1951

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40231/99 DC 9694/97 FITZGERALD JA FOSTER AJA BROWNIE AJA

WEDNESDAY 30 AUGUST 2000

ALLMEN INDUSTRIES PTY LTD v ACTION RECOVERY SERVICES PTY LTD

JUDGMENT

1 FITZGERALD JA: The appellant, Allmen Industries Pty Ltd, was a subcontractor to Concrete Constructions, which had been engaged to construct Blocks A, B, C, D, and E and ancillary structures at the Canterbury Hospital. Allmen in turn contracted with the respondent, Action Recovery Services Pty Ltd, to erect steelwork which was to be supplied by Allmen. 2 Following an on-site meeting on 29 January 1997 between Mr Henry, an employee of Allmen, and Mr Dell, an employee of Action, and a further meeting by them with a representative of Concrete Constructions the following day, Mr Dell submitted a written quote for $76,250 on behalf of Action on 4 February 1997. Mr Henry, on behalf of Allmen, sent Action a written order in response to that quote, accepting the price quoted, on 21 February 1997. 3 Action's written quote and Allmen's written order respectively provided: Quote (4 February 1997) "Allmen Engineering, ….. Re: Canterbury Hospital Following out site meeting at Canterbury Hospital in regards to installing steel work for roofing. As discussed at meeting with Concrete Constructions site manager there would be very little, if any, tower crane made available to us for installation. Taking this into account we have allowed for mobile cranes to install steelwork on buildings D & E from around outside. We can use mobiles on sections off Blocks E, B & A only from around outside owing to limited access. Therefore we have allowed for a 5 Ton track crane to install remaining steel on these locations. Included in quotation is supply of all working platform labour and grouting of columns. OUR PRICE: - $76,250.00 …." Order (21 February 1997) "Allmen Engineering Canterbury Hospital ….. To: Action Recovery Services PLEASE SUPPLY THE FOLLOWING GOODS OR SERVICES IN GOOD ORDER & CONDITION: ERECTION OF STEELWORK FOR CANTERBURY HOSPITAL, BLOCKS A, B, C, D & E, WALKWAYS, MAIN ENTRY CANOPY & AMBULANCE BAY CANOPY INCLUDE. ALL PURLINS, BRIDGING, SCAFFOLDING, CRAINAGE, ACCESS, GROUTING RE: YOUR QUOTE DATED 4/2/97 $76,250." 4 Action commenced to perform its contract with Allmen on 17 February 1997 (prior to Allmen's written order) and stopped work and left the site on 8 May that year. Action alleged, and the trial judge accepted, that Allmen had repudiated the contract. Allmen alleged that Action repudiated the contract when it stopped work and left the site. 5 Action sued Allmen, which counterclaimed. Most pleadings were amended, some more than once. Nonetheless, neither the pleadings nor the trial judge's judgment satisfactorily identified the issues, and his Honour dealt with some matters on a basis not advocated by either party. 6 Action's final pleading was an Amended Statement of Liquidated Claim. The relief claimed was stated as follows: "9. Interest on the above sum pursuant to Section 83 A of the District Court Act. 10. Damages, interest and costs.